Rule 5-116 Witness use immunity.

Committee commentary. — This rule, together with Rule 11-412 NMRA, creates a procedure for supplanting the privilege against self-incrimination by a grant of use immunity from the court.

There are two types of witness immunity, the so-called "use and derivative use" immunity rule and the so-called "transactional immunity" rule. Use and derivative use immunity was held to be co-extensive with the scope of the Fifth Amendment privilege against self-incrimination in Kastigar v. United States, 406 U.S. 441 (1972). See also Zicarelli v. New Jersey State Comm'n, 406 U.S. 472 (1972). The so-called "transactional immunity" rule affords the witness considerably broader protection than does the Fifth Amendment privilege. Kastigar, 406 U.S. at 453; see also Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964); see generally, Note, 82 Yale L.J. 171 (1972); Note, 58 Va. L. Rev. 1099 (1972); Note, 32 Md. L. Rev. 289 (1972).

Although prior to the 1980 amendments, this rule did not specifically require a party to make a written application for the court to issue a written order granting immunity, the New Mexico Supreme Court held that the application and order must be written. See Campos v. State, 91 N.M. 745, 580 P.2d 966 (1978). This rule was amended in 1979 to require a written application in accordance with the Campos decision. Prior to the New Mexico Supreme Court’s decision in State v. Belanger, 2009-NMSC-025, the court could only issue an order granting use immunity upon application of the prosecuting attorney. However, Belanger removed that restriction, and this rule has been revised to allow the court to issue an order granting use immunity upon application of the prosecuting attorney, the accused, or upon the court’s own motion.

If the court is considering whether to grant a defense witness use immunity over the opposition of the prosecution, Belanger provides the following guidance to district courts:

district courts should perform a balancing test which places the initial burden on the accused. The defendant must show that the proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree. If the defendant meets this initial burden, the district court must then balance the defendant’s need for the testimony against the government’s interest in opposing immunity. A court cannot determine whether a judicial grant of use immunity is necessary "without assessing the implications upon the Executive Branch." Turkish, 623 F.2d at 776. In opposing immunity, the State must demonstrate a persuasive reason that immunity would harm a significant governmental interest. If the State fails to meet this burden, and the defendant has already met his burden, the court may then exercise its informed discretion to grant use immunity which our appellate courts would review for abuse of discretion.

Belanger, 2009-NMSC-025, ¶ 38.